Citation Nr: 18141424 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 18-36 572 DATE: October 10, 2018 ORDER An initial rating in excess of 30 percent for depressive disorder, not otherwise specified (NOS), is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s service-connected depressive disorder has been manifested by symptoms most closely approximating occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for depressive disorder NOS have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.130, Diagnostic Code 9434 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1991 to July 1991. He also had service in the U.S. Army National Guard. His decorations include the Southwest Asia Service Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. Entitlement to an initial rating in excess of 30 percent for depressive disorder NOS. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran’s depressive disorder is rated under the criteria set forth in 38 C.F.R. § 4.130, Diagnostic Code 9434. It has been assigned a 30 percent evaluation for the entire period on appeal. The relevant rating criteria are as follows: A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The use of the term “such as” in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The presence of all, most, or even some, of the enumerated symptoms recited for particular ratings is not required. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the preponderance of the evidence is against the assignment of a higher evaluation for the Veteran’s depressive disorder. The record—to include consideration of the Veteran’s lay statements, private treatment records, VA treatment records, and the VA examination reports—does not demonstrate that the Veteran’s overall disability picture is consistent with a 50 percent or higher rating. The Veteran began treating with Dr. R.M., a private psychiatrist (initials used to protect privacy) in November 2006. Her records through October 2008 document depressed mood, anxiety, lack of concentration, irritability, and occasional insomnia. However, the Veteran was consistently alert and cooperative, with adequate hygiene. His thought processes were logical, coherent, and relevant. His psychomotor activity was described as adequate. He did not demonstrate any potential harm to himself or others. His speech was normal and his affect was appropriate. See Dr. R.M.’s private treatment records. Similarly, individual and group therapy reports indicate that while the Veteran reported mild to moderate depression and anxiety, he was generally functioning satisfactorily. See January 2014 to January 2015 individual and group therapy reports. In January 2014, during an initial assessment, test results indicated depression, apathy, and anxiety as well as avoidance, irritability, and lack of concentration. However, the Veteran was noted to be alert and oriented with no signs of distress. His hygiene and eye contact were good. He was described as cordial and talkative. His long and short-term memory functions were unremarkable. His cognitive faculties appeared to be uncompromised. His speech was characterized as normal, although somewhat anxious in tone. He denied any current suicidal/homicidal ideation. See January 2014 treatment record. The Veteran consistently reported mild to moderate symptoms but no severe depression or anxiety. See, e.g. April 2014 treatment record (states he is doing well for the most part, complains of mild to moderate depression and anxiety); June 2014 treatment record (states he is feeling well, denies any extreme depression or severe anxiety). In June 2014, he stated he was doing well “for the most part.” At that time, he was following his treatment goals of being more active, getting out of his room and spending more time with his wife. He was observed to be alert, oriented, and coherent, with fair hygiene and grooming. He denied any suicidal or homicidal ideation and reported sleeping at least six hours per night, uninterrupted. He did report moderate to severe anxiety, particularly when driving or in confined environments. He also continued to have difficulties relating to others. See June 2014 treatment record. In November 2014, the Veteran again stated he was feeling well and his mood was described as calm. His decision making and judgment appeared to be fair. He denied any suicidal/homicidal ideation or pressing psychosocial stressor. See November 2014 treatment record. In December 2014, he reported he was looking forward to the holidays and spending time with his family. In January 2015, he stated that he and his wife were doing well after the holiday season. It was noted that he continued to struggle with issues relating to his health as well as his military service, but for the most part he appeared to be recovering well. He again denied any suicidal/homicidal ideation, or any pressing psychosocial stressor. See January 2015 treatment record. Throughout the individual therapy reports, the Veteran was consistently noted to be alert and oriented, cooperative, and friendly, with appropriate hygiene and grooming. His speech was logical, normal in volume, tone and rhapsody, without delusions, fleeting of ideas, loose associations or paranoia. His long and short-term memory functions and recall appeared to be uncompromised. His decision-making and judgment were described as fair. While he continued to struggle with problems related to anxiety and depression, he consistently denied any suicidal/homicidal ideation or intent, or severe depression or anxiety. See, e.g., May 2014, August 2014, November 2014, January 2015 treatment records. The Veteran was afforded a VA examination in March 2013. The VA examiner diagnosed the Veteran with depressive disorder, NOS. His current medications included Cymbalta, 60 mg., and Ambien, 5 mg. There was no history of parasuicidal behavior or psychiatric hospitalizations. His current symptoms included depressed mood and anxiety, trouble sleeping, nervousness, sadness, irritability, lack of libido, and frustration over his physical limitations. He was judged to be competent to manage his own financial affairs. The March 2013 VA examiner concluded that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although he was generally performing satisfactorily, with normal routine behavior, self-care and conversation. See March 2013 VA examination report. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the preponderance of the evidence is against the Veteran’s claim. The medical and lay evidence of record is not indicative of psychiatric symptomatology causing occupational and social impairment with reduced reliability and productivity, which is required for the 50 percent rating. 38 C.F.R. § 4.130. See again Vazquez-Claudio, 713 F.3d at 118 (the Veteran’s psychiatric symptoms must cause the level of occupational and social impairment specified in the General Rating Formula). As to occupational impairment, the Veteran maintained stable employment, working in the warehouse for Abbott Pharmaceuticals for twenty-three years, until December 2012, when he left due to physical limitations. See March 2013 VA examination report at 6; Social Security Administration (SSA) records, October 2013 evaluation report. The SSA examiner noted that he adapted adequately to stressful work situations, was able to understand and carry-out instructions, responded adequately to supervision, and had no problems with absenteeism. There is no indication that he quit his job because of depression and anxiety. As to social impairment, his wife, O.J.S.A., described him as nervous, anxious, and bad-tempered. See October 2007 statement. She stated that he self-isolates and she has to make all of the decisions. Id.; see also July 2010 statement (characterizing him as depressed and angry with low self-esteem). However, the Veteran told the March 2013 VA examiner that his family and social relationships were “good.” See March 2013 VA examination report at 6. He was living with his wife and two children and enjoyed going to the beach and watching basketball games. Id. In addition, he reported to his therapist that the situation with his wife had improved, and he was spending more time with his son. See January 2014, February 2014 treatment records. In May 2014, he indicated that he was driving his son to school and accompanying his wife on shopping trips and other activities. In October 2014, he expressed anxiety about an upcoming colonoscopy, but otherwise was spending time with his wife and son and planned to continue doing similar family activities. As discussed above, the Veteran has consistently been described by his treatment providers as alert and cooperative, with normal speech and logical thought processes. There is no indication of circumstantial, circulatory, or stereotyped speech; panic attacks; difficulty in understanding complex commands; or other symptoms of similar severity. See also October 2013 SSA mental examination (stating that his attitude and behavior were unremarkable, he was cooperative and frank, his progress of thought was of a normal tempo, he expressed himself logically and coherently, there was no evidence of any perceptive disturbances, his capacities to pay attention and to concentrate were well preserved, and he showed no significant impairment in his immediate, short-term, recent or remote memory). There is also no indication of symptoms resulting in manifestations functionally equivalent to suicidal ideation; obsessional rituals; illogical, obscure, or irrelevant speech; impaired impulse control; neglect of his personal appearance and hygiene; homicidal ideation; or disorientation to time or place. The Veteran’s symptoms and impairment more closely approximate the criteria for the currently assigned 30 percent disability rating, and the greater weight of the evidence is against a higher rating. The appeal must be denied. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel